Contractors Can No Longer Make Roof Repairs Following Their Own Inspections
July 02, 2018 —
Jason Feld & Alex Chazen - Kahana & Feld LLPCalifornia law mandates that any person who conducts roof inspections for a fee can no longer effectuate the actual repairs to the same property. Effective January 1, 2018, Business & Professions Code Section 7197 (Unfair Business Practices) deems it to be an unfair business practice for a home inspector who charges a homeowner a monetary fee for inspecting the property, to perform or offer to perform additional repairs due to the inherent financial interest and conflict raised by identifying alleged defects necessitating repairs. The new law is a result of California AB 1357, which was signed into law on October 5, 2017. The goal of the new law is to disincentivize a roof inspector from creating a report for the sole purpose of obtaining a bid to perform those documented repairs. The roof contractor can perform repairs identified in their report only after a twelve month “cooling period” which provides the homeowner an opportunity to obtain multiple bids/estimates for repairs based upon the inspector’s report. The new law also discourages home inspectors from providing a list of contractors who provide monetary referral fees back to the home inspector upon receiving repair work from the homeowner based exclusively on the home inspection report.
The California Business & Professions Code Section 7195(a)(1) defines a “home inspection” as a “non-invasive, physical examination, performed for a fee in connection with the transfer…of the real property…or essential components of the residential dwelling.” Home inspection includes “any consultation regarding the property that is represented to be a home inspection or any confusingly similar term.” Business & Professions Code section 7195(a)(2) further defines a “home inspection” as including energy efficiency and solar. A “home inspection report” is a written report prepared for a fee issued after an inspection. Business & Professions Code section 7195(c). It is noted that a home inspector does not have to be a licensed architect, professional engineer, or general contractor with a Class “B” license issued by the California Contractors State License Board, but “it is the duty of a home inspector who is not licensed as a general contractor, structural pest control operator, or architect, or registered as a professional engineer to conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise. Business & Professions Code section 7196.
Reprinted courtesy of
Jason Feld, Kahana & Feld LLP and
Alex Chazen, Kahana & Feld LLP
Mr. Feld may be contacted at jfeld@kahanalaw.com
Mr. Chazen may be contacted at achazen@kahanafeld.com
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2023 Executive Insights From Leaders in Construction Law
June 12, 2023 —
Construction ExecutiveIf a major project is interrupted or canceled, are there any laws that provide protection for unpaid contractors that have performed work?
Angela Richie
Partner, Co-Chair, Construction Practice Group
Gordon Rees Scully Mansukhani
With the current volatility and uncertainty in the economy, project interruptions and cancellations are on the rise; hence, you need to take steps now to make sure you have a method to get paid for the work you have performed.
For private projects, make sure you have followed the pre-lien notification requirements for the state in which the project is located before you start work, if they are required. Then, be sure to follow the lien notice and lien filing requirements for the state. Each state is different, so you want to be ready with the appropriate documentation in advance of the project interruption or cancellation.
Reprinted courtesy of
Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Construction Industry Groups Challenge DOL’s New DBRA Regulations
December 16, 2023 —
Bret Marfut - The Construction SeytLess than a month after taking effect, the Department of Labor’s (“DOL”) broad changes to the regulations implementing Davis-Bacon and Related Acts (“DBRA”) are facing legal challenges in two federal courts. These newly-filed lawsuits could change things for those trying to navigate the new regulatory landscape. Contractors on DBRA-covered contracts should keep an eye out for developments.
On October 23, 2023, DOL’s final rule updating the regulations implementing DBRA became effective. The first major overhaul of its kind in forty years, the final rule made sweeping changes to the regulations governing payment of prevailing wages on most federally-funded construction contracts.
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Bret Marfut, SeyfarthMr. Marfut may be contacted at
bmarfut@seyfarth.com
3D Printing Innovations Enhance Building Safety
October 07, 2019 —
Mahmut Ekenel & Melissa Sanchez - Construction ExecutiveThe mention of 3D printing alone is enough to get people excited, often conjuring images of a desktop console that can download and create three dimensional objects such as prototypes, or mechanical parts. And yet, in recent years the technology has given way to a slight impatience, as people begin to wonder how and when it will have a direct impact on both their lifestyles and their businesses.
The construction industry has been quick to take advantage of these innovations, and the effects are tangible, especially regarding building safety. The 3D construction technology allows for several key advantages in terms of faster construction times, uncompromised quality of construction and lower costs—allowing for affordable dwellings to be quickly built for people in need.
These advantages also lead to safety improvements during the building process. The ability to accelerate construction time without requiring an increase in labor results in a fewer construction-related workplace injuries and a reduction in material waste, making it an environmentally friendly construction method as well.
ICC-Evaluation Service (ICC-ES), a subsidiary of the International Code Council (ICC) which develops model codes and standards (i.e. International Building Code, International Residential Code) and delivers a wide array of building safety services, has taken the lead on developing acceptance criteria to address building code compliance of 3D printed construction. Currently, 3D construction technology is not within the provisions of the International Building Code (IBC) or International Residential Code (IRC). The acceptance criteria introduces new compliance measures for interior and exterior 3D printed concrete walls (with and without structural steel reinforcement), load-bearing and non-load-bearing walls, and shear walls in one-story, single-unit, residential dwellings. The 3D walls are constructed by printing two outer layers of 3D concrete and then filling the core with 3D concrete to form a solid wall.
Reprinted courtesy of
Mahmut Ekenel & Melissa Sanchez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Ekenel may be contacted at mekenel@icc-es.org
Ms. Sanchez may be contacted at msanchez@icc-es.org
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Insurance Telematics and Usage Based Insurance Products
October 29, 2014 —
Robert Ansehl – White and Williams LLPThe New York State Department of Financial Services (the "DFS") issued Insurance Circular Letter No. 4 on May 27, 2014 (the “Circular Letter”). The purpose of the Circular Letter was to alert stakeholders of the DFS’ interest in obtaining information about products that use embedded telematic devices, including usage-based insurance products (“UBI”) that provide benefits to insurers and policyholders.
As data capture and transmission technology become more advanced, and as user interfaces become increasingly sophisticated, many insurers are considering UBI and other programs that rely upon telematic devices to monitor the behavioral patterns, tendencies and habits of insureds. For example, when these devices are installed in an insured's vehicle, a telematic device can gather driving data, including miles driven, the time of day the driver used the vehicle, and his/her speed, acceleration and braking patterns. This data can be captured and transmitted on a real-time basis that allows insurers to make more effective underwriting determinations and to better align pricing with an insured’s driving tendencies and the resulting attendant risks. Other insurers have applied UBI to homeowner’s insurance where, for example, smoke and other alarms and monitoring devices can monitor and transmit details regarding the resident's risk-based activities (for example, whether and how often and how long the insured uses ovens and stoves on an attended and unattended basis). This data can be used to facilitate an insurer’s ability to correlate insurance coverage decisions with the insured’s actual behavior (as opposed to self-reported behavior) as measured by sophisticated home-based telematic devices. In addition, UBI and other programs provide the data on a real-time basis, as opposed to collecting information via traditional means, principally based upon post-claim reporting. Tempering increased UBI usage are countervailing privacy and data protection concerns and risks. Regulators, insurers and consumers have significant stakes in the availability, access and applications of this information.
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Robert Ansehl, White and Williams LLPMr. Ansehl may be contacted at
ansehlr@whiteandwilliams.com
Payment Bond Claim Notice Requires More than Mailing
June 18, 2019 —
Christopher G. Hill - Construction Law MusingsIt’s been a while since I posted something new relating to Virginia’s “Little Miller Act” and its various notice requirements for a subcontractor to make a payment bond claim.
I have posted on the basics of a Virginia payment bond claim previously here at Musings. One of these basics is the 90 day notice requirement for suppliers or second tier subcontractors with no direct contractual relationship to the general contractor. A recent case from the Norfolk, Virginia Circuit Court examined when notice is “given” under the Little Miller Act.
In R T Atkinson Building Corp v Archer Western Construction, LLC the Court looked at the question of whether mailing of the notice of claim is enough to constitute notice being “given” in a manner that would satisfy the statutory requirements. In that case, the supplier mailed the notice within the 90 day window, but the defendant argued on summary judgment that it did not receive the notice until 2 days after the 90 day window had closed. In support of this contention, the defendant provided tracking information showing delivery by the USPS on the non-compliant date.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Be a Good Neighbor: Techniques to Mitigate the Risk of Claims from Adjacent Landowners
December 07, 2020 —
Joshua Levy, Josh Neudorfer & Madeleine Bailey - Construction ExecutiveIn May 2020, a real estate developer performing excavation work in New York was sued by a neighboring property owner for property damage. A court overturned an injunction preventing the developer from continuing excavation work after reviewing a preconstruction assessment that showed the damage to the neighboring property was preexisting—not caused by the excavation (see Feldman v. 3588 Nostrand Ave. LLC as an example)
A preconstruction assessment is one of the most important tools in the arsenal of a developer protecting itself from neighbors bringing claims for property damage. Part two of this series will review the benefits of risk mitigation tools recommended for developers such as postconstruction assessments and monitoring during construction.
Preconstruction Assessment Overview
A preconstruction assessment is a review of a property adjacent to a site where demolition and/or construction activities are to take place. The goal of the assessment is to establish baseline conditions by conducting an inspection of buildings and infrastructure, including identification of existing damage to improvements, so that causation of any alleged damages can be more easily determined.
Reprinted courtesy of
Joshua Levy, Josh Neudorfer & Madeleine Bailey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Levy may be contacted at joshua.levy@huschblackwell.com
Mr. Neudorfer may be contacted at jneudorfer@thesigmagroup.com
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Nevada Insureds Can Rely on Extrinsic Facts to Show that An Insurer Owes a Duty to Defend
November 15, 2021 —
Sarah J. Odia & Scott S. Thomas - Payne & FearsOn Oct. 28, 2021, the Nevada Supreme Court in Zurich American Insurance Company v.. Ironshore Specialty Insurance Company, 137 Nev. Adv. Op. 66, held that an insured can rely on extrinsic facts to show that an insurer has a duty to defend the insured, as long as the facts were available to the insurer at the time the insured tendered the claim. The court also held that an insured has the burden of proving that an exception to an exclusion in an insurance policy applies to create a duty to defend.
In Zurich, Ironshore refused to defend to its insured against multiple property damage claims arising out of construction defects, claiming that its policies’ continuing and progressive damage exclusions barred coverage. The underlying lawsuits made no specific allegations describing when or how the property damage occurred. Ironshore claimed that the property damage had occurred due to faulty work that predated the commencement of its policies. Two different federal trial courts came to conflicting conclusions in the underlying cases. One held that Ironshore had a duty to defend because Ironshore failed to show that an exception to the exclusion did not apply. The second granted summary judgment in favor of Ironshore holding that the insured failed to meet its burden of proving that an exception to the exclusion applied.
Reprinted courtesy of
Sarah J. Odia, Payne & Fears and
Scott S. Thomas, Payne & Fears
Ms. Odia may be contacted at sjo@paynefears.com
Mr. Thomas may be contacted at sst@paynefears.com
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